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Note: I am posting this on my personal blog since my website, FairUseTube.org, is currently down due to increased traffic and MochaHost’s crappy service. I will post this there too once my site is restored. ~Patrick McKay

Just over one year ago, I began a campaign on my website, FairUseTube.org calling for much needed reforms to YouTube’s process for disputing copyright claims made by its automated Content ID copyright filtering system. Even though it was possible to dispute copyright claims on your videos, the dispute went right back to the party claiming copyright over your video, who then had the choice to either release their claim or simply reinstate it, in which case the uploader had no further recourse. This of course led to entirely predictable massive abuse by unscrupulous parties falsely claiming copyright (and profiting from the ad revenue) on everything from birdsongs to the NASA Mars rover and President Obama’s attempts at karaoke.

Over the past year I have highlighted these kinds of abuses on my website and have been quoted in several media articles on the subject by outlets such as Wired and TorrentFreak. As media awareness of the issue grew, the pressure has steadily increased for YouTube to do something to reform its woefully one-sided copyright dispute process. Today it appears that YouTube has at last bowed to that pressure and enacted at least one major reform that I and other critics have been calling for.

In a blog post this afternoon, YouTube announced a new appeals process for Content ID disputes, which should put an end to copyright claimants acting as judges of their own claims and once again giving users whose videos are blocked or monetized by false Content ID matches recourse to the counter-notice process under the DMCA. The new appeals process is described in greater detail here. As I said in a quote on Ars Technica, at this point I am cautiously optimistic about this new appeals process. If implemented correctly, it will be a huge step forward toward protecting the rights of online video creators against overzealous copyright claims.

However, it should be noted that YouTube’s “improved” appeals process really does little more than restore the Content ID dispute process to the way it used to work when the Content ID system was first created, and the way YouTube claimed as late as April of 2010 that it still worked. That is, when a user disputes a Content ID claim, the copyright claimant must then file a formal DMCA takedown notice (with its attendant legal penalties for misuse) if they insist on taking the video down. However, sometime after YouTube made that blog post, things changed, and YouTube now finally acknowledges that, “Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims).“

While I do not know exactly when things changed, I first experienced this myself in August of 2011 and received emails from others who experienced it quite a few months before that, possibly as early as mid-2010. So while I am glad YouTube is now admitting the problem and taking steps to correct it, it is still disappointing that it took them possibly several years (depending on exactly how long this has been going on) to realize it might be a problem to let copyright claimants judge disputes against their own claims.

Moreover, it remains to be seen exactly how accessible this new appeals process really is to the average YouTube user whose videos are flagged for copyright infringement. While the original dispute process (pre-2010) used to go Content ID claim > dispute > DMCA process, it appears this new system goes more like Content ID claim > dispute > reinstated claim > appeal > DMCA process. While this is an improvement over the current Content ID claim > dispute > reinstated claim > no recourse, it still adds yet another layer of complexity to what is already the most convoluted copyright dispute process of any major user-generated content site on the net.

In my own experience, the average user is already bewildered by the current system. Adding an extra layer to the dispute process will only confuse people more. Why not simply have it the way the dispute process originally worked, where any time a user disputed a Content ID claim the claimant had to make the choice right then between dropping the claim entirely or filing a DMCA notice? Since the copyright claimant will ultimately have to make that choice anyway, why wait until after the copyright claimant has reinstated their claim as before, and then the user has been forced to file another dispute in the new appeals process before finally invoking the DMCA process?

It also remains to be seen exactly what videos will be eligible for the new appeals process. The YouTube help page states:

Uploaders in good copyright standing may be able to appeal up to three disputed Content ID matches that were reviewed and rejected at a time.

Additional eligibility restrictions may apply, including the date of dispute and other factors. Uploaders will also be asked to verify their account if they have not already done so. The eligibility for the appeals process may change over time.

It will be interesting to see exactly what kind of “eligibility restrictions” YouTube imposes on this. It is quite possible that if you have an old Content ID claim on your video that you disputed and it was reinstated, you still might not be able to take advantage of the new appeals process. The reference to users “in good copyright standing” likely means you will be unable to appeal reinstated copyright claims if you have any outstanding DMCA strikes on your account, just as you are unable to upload videos with creative commons licenses, post unlisted videos, or upload videos longer than 15 minutes. I’m also not sure what this “three at a time” language means. Does this mean you can only appeal three reinstated Content ID claims ever, in a year, in a week, in a day, what?

As far as I can tell, the new appeals process hasn’t actually been implemented yet, and it will probably be gradually rolled out over the next few weeks. When it does, I will certainly try it out myself and write a tutorial on it for my existing Guide to YouTube Removals. In the meantime, I’d say online video creators have potentially won an important victory today in the fight to protect our rights against overbearing copyright claims by automated filters, and I look forward to seeing how this plays out in the coming weeks.

Throughout the debate over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), there has been one refrain commonly invoked by the pro-copyright, anti-internet crowd. “There is no first amendment right to infringe someone’s copyright.” Or “copyright and free speech do not conflict.” Leaving aside the obvious fact that the Supreme Court has repeatedly stated that there IS in fact a first amendment right to make unauthorized use of copyrighted material under the fair use doctrine, the idea that copyright and free speech do not conflict is demonstrably false.

At its heart, copyright law is a censorship mechanism. It is a way to grant one person or entity a monopoly on certain speech and deny all but those declared to be the “owners” of that speech the right to use it for their own expression. We believe this is justified because it provides financial incentives for speech, and indeed it seems reasonable that people should be entitled to benefit from their creative works. But we must always remember that, at its core, copyright is nothing less than the government dictating who may speak and who may not. Given this, there will ALWAYS be some degree of tension between copyright law and freedom of speech–between the Copyright Clause of the Constitution, and the First Amendment. To say that there is no conflict between copyright and free speech is simply wrong.

The conflict between copyright and free speech can be clearly seen when copyright laws are abused and used to censor speech that does not infringe anyone’s copyright. While the pro-copyright lobby may claim otherwise, the truth is such abuses are both common and widespread. In light of bills like SOPA and PIPA which propose dramatically expanding the powers of both the federal government and private copyright owners to enforce copyrights, it is important to keep in mind the ways in which copyright is abused under existing laws, and the potential for even greater abuses should these bills pass.

Now that outright DNS blocking and the horrible “private right of action” provisions have been removed from SOPA and PIPA, one of the most dangerous remaining provisions is the section granting “immunity” to search engines, payment processors, and ad-serving networks who “voluntarily” decide to cut-off services to websites which they decide “facilitate” copyright infringement. As many people have pointed out, this will most likely result in a process similar to the existing DMCA takedown process, whereby service providers who are notified by copyright claimants that a particular site “facilitates” copyright law will immediately move to cut-off service to that site for the sake of avoiding liability, regardless of whether that site actually violates copyright law in any way.

This is exactly how every content hosting service in existence, from Google to YouTube to Facebook to file hosting sites like Megaupload and Rapidshare (the ostensible targets of SOPA) currently respond to takedown notices under the DMCA. But the “voluntary” blacklists created by private companies under SOPA would have none of the safeguards included in the legally mandated DMCA takedown process, such as the opportunity for accused infringers to file counter-notices and get their content restored. Under SOPA, while companies are encouraged to cut-off service to sites which are accused of piracy, they have no corresponding obligation to restore service if the allegation turns out to be false. The result will be the establishment of private copyright enforcement regimes administered by corporations with no accountability, no safeguards against abuse, and no mechanism for appeal.

How do I know this? Because this is exactly what has happened on YouTube, which currently runs the largest private copyright enforcement regime in existence under the guise of its “Content ID” program. As a YouTube video creator who frequently employs fair use in order to make unauthorized use of copyrighted content in YouTube videos, and because of my work advocating for a fairer copyright enforcement system on YouTube through my website, FairUseTube.org, I have been in a position to see just how often such private copyright enforcement systems are abused.

Under YouTube’s Content ID system, every video that is uploaded is automatically scanned against a vast database of copyrighted works contributed by YouTube’s Content ID partners. If either the video or audio content matches the digital fingerprint of a sample in YouTube’s database, the system applies the copyright owner’s preselected policy to either block the video outright, allow it to remain up but track its view statistics, or “monetize the video” by taking a cut of the revenue from ads embedded in the video page. While on the surface this seems like a great way for YouTube to allow users to upload videos which use copyrighted content while allowing copyright owners to still make money from their otherwise unauthorized use, the system has two fatal flaws: (1) Content ID matches are notoriously inaccurate and wide-open to abuse, and (2) there is no effective way to appeal mistaken identifications or even blatantly false and fraudulent claims.

First, once an entity is accepted as a partner in YouTube’s Content ID program,YouTube apparently does not require copyright claimants to submit any proof that they own the copyright to works which they upload as reference files. There have been numerous reported cases of unscrupulous companies submitting works that are either in the public domain or are simply not owned by them into the Content ID database. This allows them to claim ownership of, block, and/or receive ad revenue from, videos which they do not own any copyright interest in whatsoever. Even when there is a legitimate copyright involved, the Content ID system is often unable to tell a copyrighted work from a non-copyrighted one. This problem is especially severe with regard to recordings of classical music, where the music itself is in the public domain, but specific recordings may be subject to copyright. The Content ID system cannot tell one recording of the same classical song from another, and thus people who have legally used recordings of classical symphonies that were either in the public domain or that they have legally licensed from a third-party music library (and in some cases even performed themselves) have found their videos misidentified as containing a copyrighted recording owned by someone else.

Misidentification or even fraudulent copyright claims would not be so bad if there was a means to appeal such false-positives and punish users who abuse the system. But in fact there is not. While YouTube maintains a nominal mechanism for “disputing” false or mistaken Content ID matches, this dispute system is a joke. This is because the person who gets to decide whether to accept the user’s dispute is none other than the copyright claimant himself.

When a user files a dispute, the Content ID claimant is given three options: (1) release the claim, (2) have the video taken down via a formal DMCA claim, and (3) reinstate the Content ID claim. While the first option removes the false claim entirely and the second invokes the formal DMCA takedown process under the law (allowing the user to send a DMCA counter-notice and get their video restored that way), the third option reinstates the Content ID match, allowing the claimant to either block or receive all the ad revenue from a video, with no further opportunity for the uploader to appeal. Instead, the user is greeted merely with a message that the copyright owner has “confirmed their claim” to the content. If the user attempts to contact YouTube to further appeal a false claim, they are told that their only option at this point is to convince the claimant to retract their claim.

Through this process, YouTube gives copyright claimants the ability to essentially be the judge in their own cases–giving them sole discretion whether or not to accept a dispute against their copyright claim. As experience has shown, Content ID claimants almost universally choose to “reinstate” their claims (likely through an automated process or merely clicking “select all” in the list of disputes). As a result, the Content ID dispute process is next to useless, and those who attempt to dispute a mistaken identification or claim fair use, will most likely find their video re-blocked through Content ID in a matter of days after they file their dispute, with no further recourse or opportunity for appeal.

It is important to note at this point, that everything YouTube has done is perfectly legal under current law. Nothing today prevents companies from establishing their own private systems of copyright enforcement which go far beyond the process prescribed in the DMCA, and which contain none of its safeguards against abuse. In YouTube’s case, Content ID exists alongside the DMCA process, as the DMCA provides an alternate means by which videos can be removed for copyright infringement. But while YouTube originally intended Content ID to serve as a kind of front-end buffer to the DMCA process, allowing users to have recourse to the DMCA counter-notice process in the event a Content ID dispute was rejected, that option no longer exists. Instead, Content ID has almost completely supplanted the DMCA process as the primary means of copyright enforcement on YouTube, and users who have videos permanently blocked by Content ID have no recourse to DMCA counter-notices.

It is under this context that, when last month Universal Music used the Content ID system to have an original commercial by Megaupload taken down without having any legitimate copyright claim against it, Universal could plausibly claim in court that they could use YouTube’s private system to block the video without being subject to any of the penalties for fraudulent copyright claims under the DMCA. It is this system that has allowed unscrupulous companies like GoDigital to illegally hijack ad-revenue from hundreds of original videos using legally licensed royalty-free tracks from third-party music libraries. And it is this system that has allowed others to claim a monopoly on royalty-free music loops and samples provided with popular software such as iMovie and GarageBand, effectively preventing anyone else from using them in YouTube videos. All of these are documented cases of flagrant abuse, with dozens of complaints on YouTube’s help forums that the company has systematically ignored and failed to act upon. (To read more about these specific cases, click here.)

The reason for that is simple. The current law simply provides no incentive for companies like YouTube to protect their users against false and abusive copyright claims. YouTube would much rather placate major copyright holders like Viacom and Universal Music and avoid expensive lawsuits than stand up for users’ rights by forcing copyright claimants to prove a valid copyright interest in videos alleged to be infringing, or in the very least provide an effective means to appeal false copyright claims.

While Google was one of the most vocal parties involved in yesterday’s protest against SOPA, their own system which they have built on YouTube provides a clear example of exactly what we can expect if SOPA passes. When private service providers are deputized to become enforcers of copyright law with no incentive to defend individual users, they will invariably sacrifice the free speech rights of their users for the sake of avoiding expensive lawsuits. YouTube has shown us that nothing good can come of privatizing copyright enforcement, which only serves to harm freedom of speech online.

Imagine how much worse it would be, if instead of specific content being subject to such arbitrary blocking as YouTube currently employs, entire websites could be cut-off from all financial services and revenue sources by the mere accusations of big media companies. What would happen if, instead of individual YouTube videos getting blocked, YouTube itself was de-listed from search engines and denied its life’s blood in ad revenue, with no opportunity for appeal? That is what would happen under SOPA. Let us take warning from YouTube’s own practices, before YouTube itself finds itself in the cross-hairs.

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

YouTube’s copyright policies are confusing enough to begin with, as unlike most other video sharing sites, YouTube has not one but TWO overlapping copyright enforcement systems–it’s automated Content ID system, and the regular DMCA takedown regime that all content hosting sites are required to follow by the Digital Millennium Copyright Act.

Videos can be blocked/taken down by either system, and each system has its own process for filing a dispute. If a video is subject to a DMCA takedown notice (which must meet standards established by law), it shows up in your account as “rejected for copyright infringement,” and there will also be a strike placed against your account, which will cause your account to be terminated upon the third strike. If your video makes fair use of the copyrighted content in question or the claim is false, you can file a DMCA counter-notification (also specified by law), and your video will be restored after a waiting period of approximately three weeks.

If a video is identified by YouTube’s automated, media fingerprinting “Content ID” system as containing content by a copyright owner enrolled in the Content ID program, several things can happen. The video can remain viewable, but “monetized,” meaning adds will show next to it; it can be blocked entirely (either worldwide or in selected countries), or in the case of audio-only matches, the sound can be muted. These videos show up on your “My Videos” page as having “matched third party content.” Because this is all done by computer and no form of DMCA takedown notice has been sent, videos blocked in this manner do not cause a strike to accrue against your account. If you want to dispute a Content ID block, there is an easy dispute form which you can fill out, which in most cases will cause the video to be automatically and immediately restored, though it does send a notice of your dispute to the copyright owner.

Here’s where things get tricky, since the copyright owner then has the opportunity to respond to your dispute. Often they will simply ignore it, and after a few months the “View Copyright Info” page for that video will display a message saying “dispute successful” and the content match will soon disappear entirely. On the other hand, what happens if the copyright owner still believes the material is infringing? According to YouTube, this is what is supposed to happen:

If you feel your video has been misidentified by the Content ID system, you can dispute the identification. This involves filling out a short form listing the reason for your dispute. We then notify the content owner whose reference material was matched. The content owner will then review the match. If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

In other words, if the copyright claimant does not accept your dispute, they have the option of escalating to a formal DMCA takedown notice, in which case YouTube’s other copyright enforcement system kicks in, the video would be taken down again, and a strike would be issued against your account. The user would then have the right to dispute a second time using a DMCA counter-notice, and have the video restored once again. According to the DMCA, this is where the process ends, since only if the copyright claimant notifies the service provider that they intent to file a lawsuit seeking an injunction against your video can the service provider leave it offline. Otherwise they are supposed to restore it after the waiting period established by law.

Sometime in the last couple years, YouTube has quietly started acting in a different way, contrary to their stated policy. Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

I had been hearing reports about this happening for months. Because of my website, fairusetube.org and the video tutorials I have posted on YouTube regarding fair use and the Content ID dispute process, people have been posting comments and sending me messages about this for a while. But until last week, it had not actually happened to me (at least where the video was blocked in the U.S. where fair use applies). Then last week, I noticed one of my older anime music videos was blocked pretty much everywhere, including the U.S., by Content ID. I filed a dispute as I have many other times, and the video was unblocked for a few days, and then re-blocked with the message above. No further Content ID dispute was possible, because the record of my original dispute was still there. And when I tried filing a DMCA counter-notice (I tried twice, using both YouTube’s counter-notice webform and a counter-notice emailed to copyright@youtube.com), all I got was an automated response essentially telling me this is a Content ID issue not a DMCA issue. Other emails I have sent about this to YouTube’s copyright support address have gone unanswered.

So I’m stuck. My Content ID dispute was rejected, but in a manner other than a DMCA takedown notice, so I am not allowed to take advantage of the DMCA counter-notice process. It appears there truly is no recourse for this situation. My video is blocked, and there is simply no process to file a further dispute and get my video restored again. Contrary to both the takedown process established by law and YouTube’s own stated policy, the condition at the end of the process is that the user’s video remains blocked, rather than remaining up unless notice is given of pending legal action over the video.

This situation is frankly outrageous. It was bad enough when YouTube created the Content ID system in the first place, imposing automated blocks on videos with no regard for fair use. It is even worse now that this system apparently has no effective means of dispute, since whenever a copyright owner chooses to “confirm” their claim (as anecdotal evidence suggests they are doing with increasing frequency), there is nothing users can do to fight it. They are literally stuck in a gap between YouTube’s two competing copyright systems–a black hole which YouTube does not acknowledge even exists, and which, to my knowledge, no one else has ever addressed either. Something must be done about this, since until YouTube’s policy in this situation changes, many videos that are perfectly legal and non-infringing will continue to be unjustly blocked by Content ID with no recourse.

Earlier this summer, I made the winning video for Public Knowledge’s video contest to create a response to YouTube’s “Copyright School” video, which made only a token mention of the crucial exception in copyright law for “fair use” and portrayed fair use as being too complicated for ordinary YouTube users to understand. Public Knowledge challenged the online video community to create a video presenting a more balanced view of fair use, and my video, “Fair Use School: The Rest of the Copyright Story,” ended up winning that contest and even received a bit of news coverage, such as in this TechDirt article.

Soon after my video was announced the winner of Public Knowledge’s contest, I was contacted by Patricia Aufderheide of American University, who is also the director of the Center for Social Media. She graciously offered to send me a copy of the new book she recently coauthored with Peter Jaszi, called Reclaiming Fair Use. I have spent the last few days reading the book while on vacation in Washington state and British Columbia (my family thinks I’m crazy for reading about copyright law on vacation), and enjoyed it immensely.

Overall, I found this book to be an excellent resource on the current state of fair use law in the U.S., complete with succinct analysis of changing judicial views becoming friendlier to fair use, and valuable strategic insights for those involved in the copyright reform movement. The basic thesis of Reclaiming Fair Use is that, far from being a dead letter or uselessly vague concept, fair use today is alive and well; and the more people insist on exercising their rights under fair use, the better they can shape the practices which will ultimately come to define fair use for their communities.

The book starts out with a brief recapitulation of the many flaws of our current copyright system, which should be familiar to most people concerned with this subject. Copyright today lasts longer than ever, is broader than ever, and actually licensing copyrighted content for new uses is more difficult than ever. This has resulted in a significant chilling effect on the creation of new cultural works, as ignorance about fair use rights and fear of copyright lawsuits have kept many from creating as freely as they might otherwise have done.

The authors then give a detailed history of the fair use doctrine, from its origin in the 1800s, through its codification in 1976, up through the present day. Even though fair use went through a brief period of decline in which it was marginalized by a law-and-economics approach to considering whether a new use competed with the market for the original, judges have more recently recognized “transformativeness” as the key element of fair use analysis. If copyrighted content is put to a new use that adds new meaning, message, or purpose rather than merely superseding the original, courts today are much more likely to find fair use, even if the new use could conceivably compete with some market for licensing the original material.

While I found the history of the fair use doctrine and current judicial interpretation enlightening (I did not previously know that courts now consider transformativeness to be more important than economic impact), the part of the book I found most fascinating was its insights on the strategy of the broader copyright reform movement. The authors argue that copyright reform advocates were far too quick to concede that fair use is too vague and nebulous a concept to be of any real use to those wishing to put copyrighted content to new and transformative uses. Instead, scholars like Lawrence Lessig and others began advocating either for radical changes to the copyright system that are unlikely to ever happen, or for alternatives to traditional copyright such as Creative Commons.

Aufderheide and Jaszi argue that it was a mistake to concede so much ground to content owners, such that many copyright reformers had effectively given up on fair use. As Peter Jenkins once wrote in response to the quick dismissal of fair use by copyright reform advocates, “with friends like these, who needs enemies?” Rather than giving up on fair use and allowing it to atrophy, we should rather be aggressive in asserting our rights to make fair use of copyrighted content.

Fair use was deliberately designed to be a flexible concept, very much tied to contemporary practice and community norms. Aufderheide and Jaszi argue that it is up to fair users themselves—not their lawyers or their gatekeepers—to define for themselves what fair use means for their community. One of the best ways to do this is by developing “codes of best practices,” which set forth standards for what is believed and accepted to be fair use by a given community, be they documentary filmmakers or media studies teachers. The authors then go on to cite a number of encouraging examples of how these codes of best practices have helped empower several creative communities to throw off the shackles of unnecessary licensing and fear of copyright lawsuits and begin making fair use of copyrighted content in ways they previously considered impossible.

Personally, I found the authors’ insights into the strategy of the copyright reform very enlightening, and was encouraged by the work they have been doing promoting codes of best practices in fair use. I too have previously noted how easily many copyright reformists have given up on fair use as having any practical value. One of the most important things I learned through competing in policy debate in high school and college was the concept of “ground” in a debate, where the side that most aggressively seizes ground in the early stages of a debate and successfully holds onto it usually wins.

When viewed in this way, it was indeed a grave tactical error for the copyright reform community to concede fair use early on, as it has only made it much more difficult for us to retake that ground and begin restoring utility to the fair use doctrine. I was glad to read of the many successes the Center for Social Media has had promoting its codes of best practices in several key creative communities. I wholeheartedly agree with the authors that the best way to fight against overly restrictive copyright laws is by boldly asserting our rights under fair use whenever possible.

One thing I disagree with the book on, however, is that I don’t think codes of best practices will always necessarily be the best way to do this. While codes of best practices may work great in professional communities such as documentary filmmakers and media teachers, they are much less useful in creative communities that do not have any well-defined structure or representative organizations. This is particularly true in the amateur online video community. While I admire the Center for Social Media’s effort to create a Code of Best Practices for Fair Use in Online Video, I don’t see how it could ever reach enough people to have a meaningful impact. I run a website called fairusetube.org, in which I provide tutorials on fair use and guides for dealing with copyright issues on YouTube. I get messages from YouTube users facing copyright takedowns several times a week, and do my best to help them by giving general pointers about fair use and the YouTube copyright dispute process (without crossing the line into giving legal advice of course).

From my experience, most YouTube users know virtually nothing about fair use, and even when informed about their right to dispute copyright claims against their videos, they are too terrified of drawing the ire of copyright owners to risk filing a DMCA counter-notice. Add to this the fact that YouTube’s dual systems of copyright enforcement (both the automated Content ID system and the DMCA takedown process) are hopelessly confusing and leaves gaps in which videos can be blocked with truly no recourse, and copyright continues to be a huge obstacle to online video creators, regardless of the existence of a code of best practices (which most online video creators do not even know exists). Ultimately, as I argued in my forthcoming student note (to be published in the fall 2011 Regent Law Review), I think it will take clear legislative protections for noncommercial, transformative works and real penalties for abuse of the DMCA to solve this problem.

And while this criticism goes beyond the book itself, I also don’t think the Center for Social Media’s code goes far enough to cover the majority of what online video creators actually do. It strongly implies that any use of a complete piece of music in a video cannot be transformative, and therefore is unlikely to be fair use. Coming from my perspective as a vidder who has made several highly popular anime music videos, I would disagree with this. Even though my vids use complete copyrighted songs, I (like other AMV creators) deliberately craft my videos so that the music and video are inseparable parts of a new work of art, where both mutually reflect upon the other and add new meaning and message that would not be present with either the music or the video alone. If this isn’t transformative, I don’t know what is. The fact that these songs would be impossible for amateur creators to license any other way should only add to the case for fair use in these situations. Personally, I would love to see a more expansive code of best practices for online video that recognizes things like vidding—even where complete songs are involved—as fair use.

These minor criticisms aside, I found this book a highly informative and insightful read on the current state of fair use law, with lots of valuable suggestions on how to reclaim and expand fair use rights in the face of long and strong copyright restrictions. It is a must-read for anyone interested in issues of copyright reform, and I hope it will lead to more and more people standing up and exercising their rights under fair use as one concrete step we can all take to fight against overly burdensome copyright laws.

So it’s been a while since I’ve written a book review or anything that’s not about tech policy. But I decided I simply have to share my thoughts about my latest read, The Hunger Games trilogy by Suzanne Collins. I know this review will be just one of many considering these books are all the rage right now with the movie just beginning filming, but they’re so good I don’t care.

I just heard about the Hunger Games books recently after someone at my internship mentioned them and I saw a couple news articles about the movie, so I downloaded the audiobooks and listened to them pretty much constantly over Memorial Day weekend, and now I’m re-listening to the whole series because I just can’t let it go. As a huge fan of dystopia stories, and of young adult sci-fi and fantasy literature in general (except Twilight–I refuse to ever touch that series), I found these books absolutely thrilling.

For those that don’t know (in which case you probably shouldn’t be reading this since there WILL be spoilers), the Hunger Games are about a future dystopian society of 12 districts in the remains of North America, ruled with an iron fist by the evil Capitol, located somewhere in the Rocky Mountains. [Note to various fan sites from a Coloradan–it is NOT Denver. The book clearly says it is on the WEST side of the mountains, not the east.] The Capitol’s trademark form of oppression is a twisted reality TV show called “the Hunger Games,” where 24 children called “tributes” must fight to the death every year, in an event that’s a cross between the Roman gladiator games and the TV show “Survivor.” The story follows a girl called Katniss who is forced to fight in the games, and ultimately winds up the reluctant figurehead of the rebellion that overthrows the tyranny of the Capitol.

The story’s central premise–the Hunger Games themselves–was pure brilliance on the author’s part. The very idea of forcing randomly selected children to fight each other to death for the people’s entertainment evoked a sense of horror and pure evil on a level I haven’t encountered in literature since reading Orwell’s 1984. The monstrosity and abject cruelty of the idea is simply breathtaking. I once formulated a theory that the best books in the dystopia genre are the ones that focus on some fundamental aspect of human nature and craft a society that either takes that away or corrupts or perverts it. I always thought one of the most horrifying aspects of 1984 was the state’s perversion of language itself to deprive people of the means to even express dissent. In this case, the idea of the Hunger Games contravenes the fundamental human instinct that children are to be valued and protected, and instead throws away their lives as pawns in a game, which the evil government uses both as a form of entertainment and as a means to keep the populace in line.

Not only do you have the tragedy of children dying, but the perversion of forcing them to kill each other, turning otherwise innocent kids into murderers and causing them to lose not only their lives but a part of their souls as well. All this is done not only to entertain the decedent Capitol populace (which would be bad enough), but to send a message that the state is absolutely in control in the most terrifying way: “We can take your children and not only kill them, but corrupt them and steal everything they are.” The psychology of oppression and control is a huge element of these books just as it was in 1984 (it plays an even bigger role in the psychological games President Snow plays with Katniss in the third book), and is just one thing that makes these books so good.

The story itself is absolutely enthralling, to the point where you simply can’t stop reading. When I first started these books, I found the first-person present narration a little disconcerting. But I quickly discovered it serves to draw you into the narrative in an incredibly immersive and intimate manner, forcing you to focus on the present and giving the feeling that all this is happening right now, to you. It almost makes you feel like you’ve become the character, feeling what they feel and experiencing what they’re experiencing. All that gives the story an intensity I’ve rarely seen in books. This is especially true during the parts in the games, where it really conveys the intensity and emotion of it all. I was constantly imagining the most intense airsoft/paintball/capture the flag game I could think of and magnify that 1000 times and add in constant fear of death at every turn. [Though for characters that are constantly faced with immanent death, they seem to think surprisingly little (read: none) about what happens after death, almost as if this society had absolutely no concept of an afterlife, which I found somewhat disappointing as it deprived the story of some of the philosophical depth it could otherwise have had.]

Speaking of death, it was that constant theme that struck me most about these books. Death is everywhere in this story, with no attempt by the author to sugar coat it or make it seem any less painful. Two death scenes in particular struck me as probably the most heart-rending scenes I have ever read in literature: Rue’s death in the first book, and Prim’s death in the third. Rue’s death was especially heartbreaking, and I swear the professional reader’s voice in the audiobook even cracked with tears during the part where Katniss sings Rue to sleep with a bittersweet lullaby. When the movie is made, I believe that scene has the potential to be one of the emotionally powerful scenes in modern cinema, especially if this amateur production of the scene is any guide. I absolutely can’t wait to see that scene on film, and especially to hear what the film’s composer does with Rue’s Lullaby.

Prim’s death in the third book was just as painful, though in a different way. You would think the author would give her death at least as much screen time as Rue’s, considering she’s the little sister Katniss has been fighting for the whole time. But her death happened so fast and unexpectedly, it was like a knife in the gut, but then the story moves on so quickly the reader doesn’t have any time to grieve until Katniss’s character does at the end of the book. At that point I really felt the full weight of Katniss’s grief. It was made all the more powerful because by that point I had already seen pictures of the actress (Willow Shields) who will play Prim in the movie, who, just like her character, is a sweet, innocent, adorable little girl who would raise the strongest protective instincts in any adult. There could be nothing more tragic than imagining a child like that dying a horrible death in battle, driving home the emotional impact of the story in a way that nothing else could.

All in all, this trilogy had one of the most poignant, bittersweet endings of any story I’ve read. Normally you expect this kind of tale to have a happy ending, and it does in a way, but by the end of the series so many beloved characters have died, it is clear that Katniss, like the reader, will never be the same. These books are sad, but their power can be seen in how much they really make you FEEL. I read another review that said it best–good books are memorable, but the BEST books are the ones that haunt you and make you feel like you have given a piece of yourself to them. That is certainly true of these books, and it is why I think they are fully deserving of all the hype they are getting with the upcoming movies. I can only hope the films manage to do them justice, and will be eagerly awaiting the first one’s release next March.

On January 18, Congresswoman Marsha Blackburn gave a speech purporting to give a conservative view of technology policy. As a strong conservative myself, I was deeply saddened to read this speech, which not only displays a deep lack of understanding about important policy issues facing the tech world, but a misunderstanding of the true tenants of conservatism in favor of the very corporate cronyism which Republicans are all too often accused of.

I have long been saddened by the fact that while I would characterize my overall political views as strongly conservative, on matters of technology, Internet, telecommunications, and intellectual property policy, my views are more in line with those more frequently advocated by liberals (though neither party actually holds to them very well). So I decided to write a response to her speech as a kind of follow up to my post a couple years ago about why conservatives should support net neutrality. It is my aim to show that while Blackburn’s goals are admirable, the tech policy that would hold truest to conservative values is nearly the exact opposite of what she has proposed.

Blackburn starts out her speech:

The casual observer sees Republican and Democrat approaches to tech policy as stylized. Republicans appear to reflexively defend big corporate interests. Democrats appear ready to smother any forward moving technology under reams of regulation. For Conservatives the challenge must be to look beyond platforms and technology to seek out those core Conservative values that are the basis of all our positions.

With this sentiment I would heartily agree. I would also say that Blackburn has accurately identified the weaknesses of both parties in this area. But unfortunately she goes on to commit precisely the same error she acknowledges Republicans are accused of–reflexively defending the interests of large corporations over the true public good.

Next Blackburn identifies the “core conservative values” that she believes a conservative tech policy should be based on:

The degree to which the economy is kept free, to which property rights are protected in the next century, to which free speech is assured; may all be shaped by tech policy. These are THE core conservative values, and we must rise to defend them in the tech policy debates in the coming decades – not to mention the coming Congress.

Another statement with which I would largely agree. Economic freedom, protecting property rights, and assuring free speech–all admirable goals and quite rightly declared to be the core principles which a conservative tech policy should aim to defend. Yet the rest of Blackburn’s speech is devoted to arguing that the government should NOT do anything to protect these values (and in fact should do other things which harm them rather than protect them). Before we go on, let us remember an important fact. Government regulation is not ALWAYS a threat to liberty, but if done rightly can in fact serve to protect these very liberties. Nor is government the ONLY threat to them; liberty can be infringed by other powerful interests as well, and corporations (especially the handful of corporations that control our entire Internet infrastructure) can pose just as great a threat to freedom of speech on the Internet as the government can.

Blackburn then sets out three central propositions to her view of tech policy through which her values can be applied:

First, what I call The Creative Economy is the emerging driver of the American economy and should be the focus of tech policy.

Second, intellectual property is the chief commodity of this new economy. For our prosperity to endure, intellectual property rights must be reinforced.

Finally, that the Internet is the primary marketplace for the creative economy. It must be kept free, predictable, and accessible.

Regarding Blackburn’s first and second propositions (which are essentially the same), no one can deny that America’s economy is becoming increasingly based on creative works and information goods rather than industrial products, and that those information goods are protected by intellectual property laws. However, is increasing intellectual property rights really the best way to greater prosperity? At their core, intellectual property laws confer exclusive ownership of information, so that no one else is allowed to use it, thus creating artificial scarcity and theoretically imparting value. In an age when freedom of information is the source of such great innovation, do we really want to pass even more restrictive laws that concentrate ownership of that information in the hands of a few large companies, whose idea of innovation is to sit on that information and sue those who attempt to actually use it (i.e. patent trolls)?

Blackburn says:

Culturally, we all differentiate between material and intellectual property rights. For the Creative Economy to thrive, we need to dissolve the barrier and ensure intellectual property rights are as strictly enforced as material rights.

This is where Blackburn is dead wrong. Has it occurred to her that there might be a good reason for this differentiation? In her very next sentence, Blackburn claims that “our founders, in Article 1, Section 8, Clause 8 [of the Constitution] explicitly established an intellectual property right to be treated with the same reverence as the material property protected by the 5th Amendment.” Yet those same founders in that same clause of the Constitution also mandated that copyrights and patents be granted only for “limited times,” while rights in physical property are perpetual. So it seems the revered Founders themselves drew a distinction between physical and intellectual property. And rightly so, for the Founding Fathers (particularly Jefferson) recognized that in order for a culture to grow, each successive generation must be free to build upon the ideas and accomplishments of the one before it.

There is very little in either art or science that is completely original. Rather art is constantly borrowing from and adapting prior art, and every new invention improves upon those previously developed. The Founders recognized that to grant complete and perpetual ownership of ideas to those of one generation to keep locked up forever leads to cultural stagnation. And so they mandated that after a certain period, copyrights and patents expire, and the ideas they protect fall into the public domain where they are free to be used by anyone.

While I agree with Blackburn that intellectual property rights should be protected, they should not be protected so strongly that no one else can ever use the ideas they protect, to the detriment of follow-on creativity and innovation. To do any less threatens the very value of assuring free speech which Blackburn cited earlier; for in the world of the Internet, intellectual property rights are headed towards a full-on collision with freedom of speech and the 1st Amendment. Blackburn however, seems not to have considered this, for later on she advocates a “war on intellectual property infringement” which she likens to the War on Terror.

Here are just a few of the ways she advocates increasing IP protections:

Patent reform “with strict deterrents to infringement.” Never mind the REAL problems in the patent system, such as out-of -control software patents and patent trolls tying up every attempt at genuine innovation in endless lawsuits. Never mind the fact that nearly everyone in the software industry now considers patents a greater hindrance to innovation than help. No, obviously the current system isn’t protecting patents enough, so patent laws need to be made even stricter.

Compromise on Orphan Works legislation, which would not even be necessary if Congress hadn’t extended the copyright term to well over 100 years, such that works remain copyrighted long after their creators are dead and no one even cares about them anymore. Why not deal with the root of the problem and decrease the scope of copyright and the length of copyright terms instead, reinvigorating the public domain in the process?

Passage of “Rogue Website” legislation (the COICA bill), which would allow the Justice Department to yank website’s domain names and order ISPs to block websites that have never been proven to violate any laws, with virtually no accountability; placing an unconstitutional prior restraint on online free speech and wreaking havoc with the domain name look-up system. Oh and it wouldn’t even actually work, since the measures the bill proposes are laughably easy to circumvent.

Can’t a conservative view of intellectual property rights be a little more sensible? And what about protecting the fair use rights of Internet users to make noncommercial, transformative use of their culture? What about IP policies which actually promote the grown of culture and science rather than prop up the dying business models of a few monolithic corporations, while at the same time giving the government virtually unlimited power to censor online speech in the name of “protecting intellectual property rights”? Since when was that conservative?

Finally, Blackburn attacks the FCC’s recent net neutrality rules, which she claims only address a hypothetical problem and will serve only to bog down future innovation in bureaucratic red tape. She states that:

The FCC’s actions are also narrow minded – reinterpreting online commerce as online communication in order to assert jurisdiction. They regulate what is perhaps the most incidental aspect of any creative economy – the means of transmission.

Apparently Blackburn adheres to the regular Republican line that because Internet Service Providers own the “pipes” of the Internet (its physical infrastructure of transmission), they should be free to do whatever they want with the content that flows over it. Yet ironically, she argues earlier that we should cease focusing on the devices with which online content is accessed, but rather focus on fostering the creative content the Internet carries. You cannot have it both ways. ISPs freely admit they want to be able to charge not only their own customers for Internet access, but also charge major websites for the “privilege” of transmitting content to their users. At the same time, they want to be able to work out deals for “paid prioritization,” so that, for example, Netflix can pay Verizon to make it’s streaming video load faster than Amazon’s video on demand service. And they would like nothing better than to “cable-ize” the Internet, so that consumers are forced to buy Internet service in packages of websites rather than an amount of bandwidth that they can use to access the online content of their choice. Such an ecosystem is not conducive to the grown of online content!

Earlier in her speech, Blackburn talks about protecting garage-bound entrepreneurs against having to navigate a maze of bureaucratic alphabet soup when starting up an innovative online service. What about the bureaucratic nightmare the next Google or YouTube would face if, in addition to having to pay their own ISP for Internet access, they also had to negotiate deals with every local ISP in the country just to be able to reach viewers at the other end? This is what the FCC’s rules were designed to prevent, and it’s exactly what we’ll get if Blackburn has her way and Congress kills any hope of the government being able to mandate basic rules for net neutrality (which rather than being the bureaucratic nightmare Blackburn describes, are simply enforcing the status quo condition that all websites should be treated equal by local ISPs). This is not “regulating the internet in extraordinary ways, in a manner we have not applied to other markets,” as Blackburn says. Rather it is simply laying down basic rules of the road akin to those for any other common carrier, that all comers must be treated alike on a level playing field.

So what should a true conservative tech policy look like? Here are my suggestions:

Keep the online economy free by passing strong net neutrality rules which preserve the Internet as an open platform for innovation, on which all web services compete on an equal playing field. Allow success on the Internet to be determined by that grand old conservative principle of competition in a free market, rather than which online services can strike the most favorable preferential deals with ISPs.

Promote the growth of the creative economy by lessening the scope of intellectual property laws, ensuring that everyone is free to innovate and create new information goods without the constant threat of a lawsuit for copyright or patent infringement. Take steps to prevent patent trolls for abusing the patent system by forcing true innovators to defend every invention in court against bogus and overboard patent claims by companies which don’t even produce anything of value, but only sue those who do. And craft policies which respect the rights of EVERYONE to create content online (including ordinary Internet users on user-generated content sites), rather than presuming that only the rights of large media companies are worth protecting.

Ensure online freedom of speech by ending attempts to censor speech in the name of protecting obsolete business models, but instead protect the rights of Internet users to remix and interact with their culture. Lessen the restrictions of copyright to make culture accessible to everyone, not just a few large media companies. These companies should still have the right to profit from their creative works, but they should be encouraged to do so in ways that reflect the reality of the digital world, rather than relying on futile attempts to use IP law to prop up dying business models. Not every “infringement” is evil, and if copyright owners would be willing to innovate and think outside the box, they may find it is perfectly possible to make money from creative content even while being less restrictive about the use of their property. Property rights are only as good as the use they are put to, and if property rights are to be respected, we must have a system of intellectual property that actually works and that people are willing to abide by.

Finally, remember that, while conservatives have always feared government power, the real danger comes from centralized power in any form, whether in government or in corporations which have every bit as much influence over our lives as the government. Instead of reflexively opposing government regulation and defending corporations at all costs, a true conservative tech policy must recognize the threats both government and corporate actions pose to our liberty. And in true conservative fashion, we should employ the tried and true system of checks and balances to protect our liberties by playing each of them against the other. Therefore let corporations restrain the government (as corporations already have tremendous political influence), and let the government restrain corporations.

Well this is some of the best news I have heard in a long time! As described in this press release by the Electronic Frontier Foundation, the Librarian of Congress just issued his new list of approved exceptions to the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA), which prohibits circumventing any type of digital copy protection even if the intended use is otherwise authorized by copyright law. The statute directs the office of the Librarian of Congress to conduct a review of this provision every three years and authorizes it to make new exceptions to it as it sees fit. The new exceptions just announced today go much further than previous ones, and include broad exceptions for jailbreaking smart phones (a direct slap in the face to Apple), enabling read-aloud features on e-books, security research on copy protection mechanisms in video games, and the right to circumvent CSS copy protection on DVDs in order to use short clips from motion pictures to create new, transformative works for purposes of commentary or criticism.

While most news sites and blogs will no doubt focus on the ability to jailbreak iPhones and iPads (which really won’t have that large an impact since that doesn’t prevent Apple from trying to stop you or invalidating your warranty if you do it), I would like to focus on the exemption for DVD decrypting. The exact wording of this exception is as follows:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

The educational exception is only slightly expanded beyond what it previously covered, and the Librarian draws at least what in my mind is an utterly arbitrary and baseless distinction between university students and professors and students and teachers at the K-12 level. The Librarian gives absolutely no explanation for why students and teachers in a university setting deserve the ability to use high quality footage ripped from DVD, while elementary and high school students do not. All the ruling says is, “proponents for educators failed to demonstrate that high quality resolution film clips are necessary for K12 teachers and students, or for college and university students other than film and media studies students.” The documentary exception, while important, is also of only limited utility since it applies to a very small class of people–documentary film makers.

The most important of these categories is the third, which encompasses most forms of non-commercial “remixing” of movies and TV shows that have become popular on user-generated video sites like YouTube. This exception allows anyone wanting to incorporate brief clips of movies and TV shows in a non-commercial (meaning not for profit) video such as an anime music video or film mashup, is now free to use a program such as DVD Decrypter to rip DVDs to their computer so they can use the footage in their video. Before the passage of this rule, even if the actual use of the footage in a video was fair use, an amateur video creator could still have faced potential liability for breaking the copy protection on the DVD in order to make their video.

In issuing this new exception, the Library of Congress finally recognized what the EFF and others have been saying for years:

What the record does demonstrate is that college and university educators,
college and university film and media studies students, documentary filmmakers,
and creators of noncommercial videos frequently make and use short film clips
from motion pictures to engage in criticism or commentary about those motion
pictures, and that in many cases it is necessary to be able to make and
incorporate high quality film clips in order effectively to engage in such
criticism or commentary. In such cases, it will be difficult or impossible to
engage in the noninfringing use without circumventing CSS in order to make
high quality copies of short portions of the motion pictures.

While that quote seems clear enough, the ruling does include some caveats which muddy the waters somewhat. In order to qualify for the exception, three conditions must be met:

The final video must use only short clips from the original motion picture, for purposes that already qualify as fair use such as commentary or criticism.

The clips must be incorporated into a new work. In other words, the use must qualify as transformative under the existing fair use criteria.

“The person engaging in the circumvention must reasonably believe that the circumvention is necessary in order to fulfill the purpose of the use.”

The first two conditions are pretty straight forward and both tie in to the existing criteria for fair use, which favor uses that take only a small portion of the original use and use it in a transformative manner. Simply taking unedited clips of movies and TV shows, even if they are short, and posting them on YouTube doesn’t qualify for the exception. However, the third condition is rather vague, since it remains unclear under what circumstances a person may reasonably believe circumvention is necessary. The ruling appears to make it an issue of video quality:

Because alternatives to circumvention such as video capture may
suffice in many, and perhaps the vast majority of situations, users must make a
reasonable determination that heightened quality is necessary to achieve the
desired goal. The justification for designating this class of works is that some
criticism and/or commentary requires the use of high quality portions of motion
pictures in order to adequately present the speechrelated purpose of the use.
Where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used.

Thus the idea seems to be that if another means of obtaining the desired footage (albeit in a lower quality) would suffice, you should do that, and breaking copy protection is only allowed when the use requires a higher quality than could be obtained through those other means. How exactly a court would decide when exactly that is, I have no idea. At least in my opinion as someone who makes these kinds of remix videos, I can’t imagine a situation where I would be satisfied with methods like screen capturing (which the Librarian cites as an example) or cam-cording a TV screen (the MPAA’s suggestion). Both of those methods produce horrible quality video far inferior to that which can be obtained by simply ripping the DVD to your hard drive and transcoding it to an easily edited AVI file. To require video creators on YouTube to use those kinds of methods instead of ripping would forever relegate them vastly inferior quality. Hopefully if the issue ever came up the courts would be satisfied by the video creator’s subjective judgment that the quality obtained by ripping the DVD was preferable to the alternatives.

Another thing I have questions about is the scope of the rule. While the rule specifically mentions CSS protection on DVDs and appears on its face to be restricted to that, I wonder if courts might construe it to apply to other similar types of copy protection, such as the AACS copy protection used on Blu Ray discs or the copy protection used on digital movie downloads from iTunes or Amazon. Since HD video is rapidly increasing in popularity both in general and in user-generated content on sites like YouTube, it makes little sense to restrict this exception to one particular type of copy protection used only on lower quality standard definition recordings, when the principle behind the rule clearly applies to all types of video copy protection. It is also disappointing that the Librarian restricts the ruling to only apply to motion pictures, and specifically excludes other audio-visual works such as video games, even though in reality footage from video games is used in remix videos almost as often as films (my own Final Fantasy music videos, for example).

Despite these limitations which make the new rule not as good as it could have been, it’s an important first step in recognizing the fair use rights of internet users to make non-commercial remixes of popular video content. Remixing is a growing art form that is an important part of the new participatory media culture that is thriving online, and it’s nice to see the government finally starting to recognize the legitimacy of that culture by protecting the right to rip DVD footage to produce these types of transformative works.

Now in honor of the new rules, I think I will add a tutorial on how to rip DVD footage and import it into video editing programs to my website, FairUseTube.org!

I’ve been meaning to write on this subject ever since I began playing Second Life a few months ago and started exploring the many unique environments it has to offer. For those not familiar with it, Second Life allows users to create vast virtual environments and to buy and sell virtual goods with an in-game currency that is exchangeable with real currency. Second Life itself is extremely interesting from a copyright perspective, since its entire virtual economy is based on copyright. Since the in-game economy is based on buying and selling virtual goods, the value of these goods relies on artificial scarcity produced by copy protections ultimately backed by copyright. It is another aspect of copyright in Second Life that I am interested in right now, however–namely the copyright implications raised by the nature of many of the virtual environments themselves.

I have previously written on one important type of fan-made “remixing” of popular intellectual properties in the form of anime music videos and similar fanvids. I argue that these types of fan-made media provide far more benefit to the original copyright holders than harm, and that these types of uses should be considered “fair use” under U.S. copyright law. In virtual worlds like Second Life however, there is an even more elaborate and sophisticated type of fan-made media that is even more threatened by excessive copyright enforcement–virtual environments based on copyrighted books, TV shows, and films.

As I’ve explored Second Life I’ve noticed that some of the most popular “sims” (simulations: user-created virtual environments) are sci-fi and fantasy role play sims–many of which are based on popular movies and television shows. I have discovered probably a dozen highly detailed sims based on Star Trek, Star Wars, Battlestar Galactica, Firefly, and Stargate, as well as several based on the Myst videogame franchise. Many of these contain highly detailed re-creations of exterior and interior environments from their respective franchises, and allow your avatar to dress as characters from the series, purchase objects and weapons based on those in the series, and even fly fully operational replicas of various types of spaceships. Allow me to illustrate with a few pictures:

On the bridge of the USS Voyager in a Star Trek themed sim.

Stargate Command, from Stargate SG-1.

The Gateroom of the Ancient starship Destiny from Stargate Universe

The Battlestar Phoenix - an imitation of a battlestar warship from Battlestar Galactica.

CIC (command center) of the Battlestar Phoenix, from Battlestar Galactica

Boarding a "Viper" starfighter in another Galactica themed sim.

The city of Coruscant from Star Wars

Exploring Tatooine from Star Wars

The city of D'ni from the Myst Uru videogame.

As you can see, all of these sims are highly detailed, realistic recreations of environments from several highly popular intellectual properties–meticulously modeled down to the tiniest detail by fans who will often spend months creating these sims. And I am willing to bet most sim owners do not go through the trouble of attempting to license their sims, if that would even be possible considering how inaccessible the licensing departments at most major media companies are to ordinary individuals. This makes all of these sims potentially copyright infringing, and leaves them all merely one DMCA notice away from being taken down. This is indeed a serious risk, as those who create these seems must invest a considerable amount of time and money into creating and maintaining them. Running a full-size sim in Second Life can cost around $400 a month, which is paid either out-of-pocket by the sim owner or through donations and virtual sales paid for by members of various role-playing groups. The creators of sims like those above based on popular IPs thus run the risk not only of a lawsuit for copyright infringement, but significant financial loss as well if the sim is taken down–a risk that is not present for fanvids uploaded to YouTube. And it is a significant risk, since I found at least one instance where a Dune themed role-play sim was forced to sanitize their sim of all Dune related material after a copyright claim by the movie studio which owned the rights to the Dune series. Fortunately for them they were able to remove the aspects of the sim explicitly related to the Dune series and turn it into just a generic sci-fi desert planet sim, but for some of the sims shown above that would not be an option, since the entire sim is related to their parent sci-fi series.

Under current copyright law, it is highly questionable whether these sims would be considered fair use by a court if an infringement suit based on them ever came to trial. For a use of copyrighted material to constitute fair use, it must satisfy the four-part test of (1) the purpose and character of the work, (2) the nature of the copied work, (3) amount and substantiality, and (4) effect on the original work’s value. The first and fourth are the most important, which is why I will concentrate on them.

Under the first prong, since these sims do not directly copy anything from their source, they would fall under the derivative works right, and much of the fair use analysis would depend on whether they are “transformative” or merely “derivative.” In most cases sci-fi themed sims try to duplicate original environments from movies or TV shows as faithfully as possible, though they may change minor details or fill in parts that were not shown in the original show. It seems to me that these sims would thus be more of a simple adaptation of the original than a true transformation, since they are merely taking copyrighted scenes and adapting them to 3D virtual environments. It is a process quite similar to when movie studios license movies to videogame companies to adapt into video games.

Another important part of the first prong is whether the use is commercial or noncommercial, with noncommercial use more likely to be fair use. Most sims barely bring in enough income from donations to pay for the sim, and many sims help offset the cost by selling virtual goods which are themselves modeled after things in the series. It is possible to buy a wide variety of outfits (i.e. a Starfleet uniform), spaceships (i.e. a Puddle Jumper from Stargate, a Viper starfighter from Galactica, or the Millennium Falcon from Star Wars), and weapons (i.e. lightsabers from Star Wars), which are either fully operational in the game environment or serve as decoration. While sci-fi themed sims are probably still not making a profit (or at least not a large one), this does add a commercial aspect to them that makes it difficult to characterize them as strictly non-commercial. On the whole then, these sims probably do not satisfy the first prong of the test.

The second and third prongs are likewise questionable. The nature of the copied work is literary/artistic, which generally weighs against fair use. Under amount and substantiality, while these sims don’t by any means incorporate all or even most of the original work, they do often simulate the most important locations in their parent series, and could thus be said to take the “heart” of the copyrighted work. Finally the fourth prong is also fairly weak, as adapting movies and TV shows to video games is an established market which a well-made Second Life sim could be said to compete with, though it is doubtful this could be empirically proven. This would however make these sims likely to fail the fourth prong as well, disqualifying them from claiming a fair use defense.

Under current copyright law, therefore, it appears that these types of Second Life sims based on recreating environments from copyrighted films and TV shows are likely infringing. The question is, should they be? I believe the answer to that is no. While these types of sims may be derivative and even have limited commercial aspects, and may at least in theory compete with other video games based on these franchises, in reality any negative effect they could have on other markets would likely be negligible at best. Even the best made Second Life sims are still amateur and rather clunky in comparison to professionally made video games. Even if made by an experienced sim developer, the Second Life platform simply doesn’t allow for the same degree of functionality and realism that a professionally produced video game has, and consumers would be highly unlikely to forgo buying an officially sanctioned video game in favor of Second Life role-play environments. For example, would a Star Wars fan prefer the Star Wars themed environments in Second Life over the latest Knights of the Old Republic game? Not likely. The two are entirely different and the Second Life environments would be highly unlikely to decrease the market for the other. And even though there is an established market for licensing IPs for adaptation into video games, it’s not like the people who make Second Life sims could afford to pay the studios’ exorbitant licensing fees anyway, eliminating any possibility that they could be a revenue source for the studios.

More importantly, fans creating their own virtual worlds based on their favorite films and TV shows represents a type of cultural innovation that should be promoted rather suppressed by overly restrictive copyright laws. Lawrence Lessig loves to talk about a quote from John Phillip Suzza, who feared that the invention of the phonograph would stop young people from joining together to sing the songs of the day and would turn them into merely passive consumers of media. And that is precisely what happened with 20th century media technologies, which created separate and distinct classes of cultural creators and cultural consumers. Modern computer technologies have reversed this trend and allow “consumers” to now directly interact with the stories and songs that form our culture–in this case by actually “creating” the very worlds in which those stories take place–albeit virtually.

Ever since books and movies have existed, they have formed the backbone of our culture as common cultural reference points which we can all share and relate to. Moreover, they have always been a starting point for our imaginations, which allow us in a sense to participate in these stories ourselves. How many Star Wars fans have not indulged in daydreaming about what it would be like to live in the Star Wars galaxy, or perhaps imagined themselves as part of that great saga? Now with virtual world technologies like Second Life, individuals have the ability to play out such fantasies in a far more concrete manner, actually walking the streets of Courscant or flying on the Millennium Falcon in the guise of their Second Life avatar. It is a natural evolution of the universal desire to interact with and build upon our culture.

It was precisely this type of cultural enrichment that copyright law was designed to promote rather than hinder. It does so primarily by providing financial incentive for authors and artists to create, but we must not lose track of the fact that its ultimate goal is cultural enrichment. Copyright was never meant to give certain big companies a monopoly over culture, and in cases where fans’ follow on creativity builds on major cultural icons like Star Wars and Star Trek without substantially harming the ability of the original creators to profit from their work, it should be encouraged rather than suppressed. Not every use of copyrighted material that can be licensed should be subject to license, as in some cases it may end up decreasing cultural enrichment rather than increasing it. Such is the case here, for if copyright laws were to be rigidly applied to prevent Second Life users from building environments based on these cultural icons, a great deal of incredible creativity would be lost. This matter will only grow more important as virtual worlds continue to mature (perhaps someday even to the level of the fully immersive virtual reality portrayed in the TV show Caprica), and I can only hope that courts and legislatures begin to see the importance of protecting such follow-on creativity before copyright law is allowed to stifle this world of possibilities they represent.

It is high time we expanded our concept of “fair use” to include these types of fan-made creations, for until we do, the law will continue to cast a pall of uncertainty on all such endeavors, producing a chilling effect that can only discourage a great deal of otherwise culturally beneficial creativity.

How to Dispute YouTube Copyright Notices
This is a video I made yesterday describing how to dispute copyright claims on YouTube and have videos restored that are blocked by YouTube’s automated Content ID system.

This marks the official launch of my new website: FairUseTube.orgwhich is dedicated to promoting awareness of fair use rights under copyright law on YouTube and similar user-generated content sites. Check it out!

The latest casualty of unjustified DMCA takedowns on YouTube appears to be the recent viral video hit “The Day ObamaCare Died,” which hit the web in October 2009 and was especially popular soon after Scott Brown’s stunning victory in Massachusetts last month. The video was originally created by YouTube user HerBunk, and featured a parody of the song “American Pie” (originally by Don McLean) sung by Obama sound-alike Paul Shanklin. The animated video was an instant online sensation, especially among conservative and Republicanbloggers, for its humorous portrayal of President Obama lamenting the defeat of his monstrous health-care bill. Now that video is no more.

HerBunk posted the following video statement on YouTube on January 25:

I made “The Day ObamaCare Died” and I uploaded it in October 2009. I put in about 30 hours of work in making the video. My copyright for the use of the song was challenged almost immediately by Universal Music Group (WMG). I beat that challenge because I had received Paul Shanklin’s permission for the use of his song. UMG owns the rights to the Don Mclean song “American Pie” also known as “The Day the Music Died” and persisted in their objections to my video on YouTube. In Dec 2009, when it had almost 700,000 hits, YouTube folded and told me that despite the fact that I wasn’t infringing on UMG’s copyright they had a contractual agreement with UMG and told me to remove the video or they would close my account permanently for failing to comply with YouTube’s “terms of service.” I removed the video. Even though ObamaCare may really be dead, I apologize for not being able to sustain the protest against it.

When I commented on this posting asking if he had filed a DMCA counter-notice, he replied:

There is no copyright case against me. I filed a counter-claim and proved that I have permission to use the song. UMG﻿ doesn’t want it on YouTube. I was told by YouTube that due to their contractual agreement with UMG they have to honor UMG’s request. If I attempt to upload the video again on YouTube my account will be terminated for violating YouTube’s terms of use. The video is still alive elsewhere on the internet.

If this is the case, this is a sad state of affairs indeed. If his statement is accurate, it seems both YouTube and Universal acknowledge that Universal has no copyright claim against the video. This is certainly true as this video is a prime example of precisely the type of speech the Fair Use Doctrine of U.S. copyright law was designed to protect–a politically motivated parody that is transformative and non-commercial in nature and in no way competes with the market for the original song, yet because of its controversial subject matter it would be highly unlikely to ever secure the copyright holder’s authorization.

What’s troubling here is that Universal and YouTube appear to know that, yet Universal insisted on censoring the video anyway, and YouTube was forced to play along because it doesn’t want to alienate Universal. While YouTube does have a contract with Universal allowing UMG’s songs to be used in YouTube videos, I highly doubt that contract requires them to censor any video Universal doesn’t like even where Universal has no legitimate copyright claim against it. This is a simple case of two large companies teaming up to abuse copyright law in censoring legitimate political speech.

Anyone who values the right to free speech that we enjoy in this country should be outraged by this move, and personally I hope that the Electronic Frontier Foundation may take notice of this incident and file a lawsuit to stop this outrageous behavior.

In the meantime, I found a copy of the video on another video site and have re-uploaded it to YouTube under my own account. Maybe I will have better luck keeping it online than the original creator. You can view the video below. Please pass the word about this video and let Universal and YouTube know that they cannot get away with abusing copyright law to censor non-infringing political speech.